John Beaumont, Kt., C.J.
1. This is an application in revision which raises a question under the Bombay District Municipal Act (Bom. III of 1901). The petitioner is the owner of a house in Nandurbar. The western wall of his house was in a bad state of repair, and the Municipality of Nandurbar issued a notice to the petitioner to take it down. The petitioner thereupon removed the wall and applied to the Municipality for permission to rebuild. That application was properly made under Section 96(1) of the Bombay District Municipal Act. The Municipality gave the permission subject to the condition that the wall should be set back a certain specified distance from the street. The petitioner, however, reconstructed the wall without complying with this condition, and was prosecuted for so doing under Section 96(5) of the Act, was convicted and fined Rs. 10. He appealed to the District Magistrate of West Khandesh and the appeal was dismissed. The petitioner now applies in revision.
2. The question turns primarily, I think, on the application of Section 91A(i) of the Bombay District Municipal Act. That section was incorporated, by amendment of the original Act, for the first time in the year 1914, and as originally drafted the added section provided that-
it shall be the duty of every Municipality to prescribe a line on each side of every public street within the municipal district and the Municipality may from time to time prescribe a fresh line in substitution for any line so prescribed....
3. Then Sub-section (3) provided:
Except under the provisions of Section 113, no person shall construct, or without the permission of the municipality under Section 96 reconstruct, any portion of any building within the regular line of the public street.
In the year 1920 the Municipality of Nandurbar did prescribe a regular line of the public street in which the petitioner's house is situate, and the building which he has erected does infringe that regular line. But in 1924, by Act IV of that year, Section 91 A of the Act was amended in this sense. It was provided that in Sub-section (1) of Section 91A of the said Act for the word 'Municipality' where it occurs for the first time the words 'City Municipality and of such other Municipality as may be notified by Government in this behalf' shall be substituted. The effect of that is that after 1924 the duty of prescribing a regular line of street was imposed only upon a City Municipality or a Municipality notified by Government. The Municipality of Nandurbar is not a City Municipality and it was not notified by Government until December 1927. So that between 1924-1927 it was not a Municipality referred to in Sub-section (1) of Section 91A. Then in 1930 Section 91A was again amended in respect of Sub-section (3), the relevant amendment being to provide that a person required to set-back his building with a view to part of his land being added to the street should be entitled to compensation. The Municipality of Nandurbar have not yet prescribed a regular line of the street since 1927 when they were notified under Section 91A of the Act, and it is contended, therefore, by the petitioner that Section 91A does not affect him because at the time when he was prosecuted the Nandurbar Municipality were in fact not within that section.
4. On behalf of the Municipality two points have been taken. It is said, first of all, that there is nothing in the amendment in 1924 of the Act to render invalid a building line prescribed under Section 91A before that date by any Municipality. The amendment of the Act is not very artistically drafted. It does not in terms say that Section 91A is to be treated as never having had any application to any Municipality except a City Municipality or other Municipality notified by Government. But it seems to me that that must be its effect. The position is that, as the Act originally stood, a duty was imposed on every Municipality to prescribe a line of street, and it was only when that duty was performed that the prohibition, imposed by Sub-section (3) on the public against building in derogation of that line took effect. It seems to me impossible to give proper effect to the amendment passed in 1924 unless we hold that Section 91A has no application to a Municipality other than one coming within the terms of the amended section. Any other Municipality would certainly have no duty after the amendment to prescribe a line of street or to alter any line previously prescribed, and in the absence of that duty it seems to me that the obligation arising upon the exercise of the duty, the obligation, that is imposed by Sub-section (3), does not arise. I think, therefore, that until the Municipality of Nandurbar prescribes a line under the powers which they acquired in 1927 on the notification of Government they are not in a position to take advantage of Section 91A.
5. It is then suggested on behalf of the Municipality that the condition they imposed can be justified under Sub-section (2) of Section 96. That sub-section provides that save as otherwise provided in the Act the Municipality in giving permission under Sub-section (1) of Section 96 may impose certain conditions amongst other things with reference to the location of the building in relation to any street existing or projected. I think one answer to that point is that the set-back required in this case is not in relation to any street existing or projected, but is really in relation to some future possible widening of the existing street, and further that the case is really covered by the principle of the decision of this Court in Bai Fatma v. Rander Municipality : AIR1914Bom112 In that case the Court held that it was not open to the Municipality to impose conditions under Section 96(2) in a case which could be brought within Section 92 of the Act, if that section were brought into operation. The basis of the reasoning in that case was that under Section 92 relating to the removal of projections compensation had to be paid by the Municipality, and that it would be inconsistent with those provisions to enable the Municipality under Section 96(2) to impose conditions as to projections without paying compensation. In my opinion the same reasoning applies in the case of Section 91 A, and if the conditions imposed relate to the prescribing of a line for the street that matter must be dealt with under Section 91A, and not under Section 96(2). The case relied on by the Municipality Emperor v. Thakordas : AIR1925Bom505 was decided before the amendment of Section 91A made in 1930, which amendment, as I have said, imposed upon Municipalities an obligation of paying compensation for land turned into a street. I think that since the amendment of 1930 the position under Section 91A is similar to the position under Section 92, and therefore the reasoning in Bai Fatma's case applies.
6. The application is allowed and the conviction set aside. The fine, if paid, should be refunded.
7. I agree.